Right to Know CLG v Commissioner for Environmental Information

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Alexander Owens
• Judgment Date: 25 January 2021
• Neutral Citation: [2021] IEHC 46
• Docket Number: [2019 No.87 MCA]
• Date: 25 January 2021

Between

Right to Know CLG

Appellant

and

Commissioner for Environmental Information

Respondent

and

Raheenleagh Power DAC

Notice Party

[2021] IEHC 46

[2019 No.87 MCA]

THE HIGH COURT

JUDGMENT of Mr. Justice Alexander Owens delivered the 25th day of January 2021

1 The issue in this appeal is whether the Commissioner for Environmental Information (the Commissioner) erred in law in deciding that Raheenleagh Power DAC (RP) is not a “ public authority” as defined in article 3(1) of the European Communities (Access to Information on the Environment) Regulations 2007 (the Regulations) which transpose Directive 2003/4/EC (the Directive) on public access to environmental information into Irish law. The reasons for this conclusion are set out in a ruling dated 9 January 2019.

2 Article 3(1) of the Regulations repeats the relevant part of Article 2(2) of the Directive which reads as follows:

‘Public authority’ shall mean:

• (a) government or other public administration, including public advisory bodies, at national, regional or local level;

• (b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and

• (c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).”

3 The Commissioner decided that RP is not a “ public authority” as defined in article 3(1)(b) or article 3(1)(c) of the Regulations. These provisions correspond with Article 2(2)(b) and Article 2(2)(c) of the Directive.

4 Paragraph 52 of the judgment of the European Court of Justice in Case C-279/12 Fish Legal and Shirley v Information Commissioner, United Utilities and Others (para. 52) gives the following guidance on the meaning and effect of Article (2)(2)(b) of the Directive:

“The second category of pubic authorities, defined in Article 2(2)(b) of Directive 2003/4, concerns administrative authorities defined in functional terms, namely entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.”

5 Directive 2003/4/EC does not provide a definition of “ the environment”. The scope of this term is indicated by the definition of “ environmental information” as comprising “any information on:

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction amongst these elements;

(b) factors such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

……..

(f) the state of human health and safety, including contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).”

6 RP is a joint-venture company which operates a wind farm in a forest in the Wicklow Mountains. The wind farm supplies electricity to the national grid. The issued shares were divided equally between Coillte CGA (Coillte) and a subsidiary of the Electricity Supply Board (the ESB). A shareholders' agreement governs the relationship between the shareholders. Each party to this agreement has nominated two directors. We are not told whether the agreement regulates deadlock in proceedings of directors or shareholders.

7 Coillte provided the site for the wind turbines. The ESB group provided expertise on building a windfarm, electricity generation and supply. RP applied to the statutory regulator and was given a licence to generate electricity and an authorisation to construct the wind farm under ss. 14 and 16 of the Electricity Regulation Act 1999 (the 1999 Act).

8 In 2018 the Coillte shares in RP were sold to GR Wind Farms 1 Ltd. This entity is a private company within a group which holds investments in renewable energy projects. GR Wind Farms 1 Ltd has replaced Coillte as a party to the shareholders' agreement.

9 Day-to-day responsibility for operation of the wind farm has been delegated by RP to an ESB subsidiary. The electricity is sold into the national grid through another ESB subsidiary and is consumed by final customers of electricity suppliers in Ireland and abroad. In order to develop and use the wind farm it was necessary to get planning permission.

10 An applicant for an authorisation can seek a special order from the regulator allowing it to acquire by compulsory purchase any land or access necessary for infrastructure required to connect to the national grid. This power was originally given to the ESB by s.47 of the Electricity Supply Act 1927 (the 1927 Act). The ESB did have to seek an authorisation to exercise the power.

11 The holder of an authorisation may also exercise powers to carry out some works without consent of landowners. It can break up streets and roads and lay cables under them. Most of these powers may only be exercised with the consent of the regulator. The powers include rights to lay electric lines over or under land and to affix lines to buildings under s.53 of the 1927 Act, as amended by the Electricity (Supply) (Amendment) Act 1985.

12 Coillte was established under the Forestry Act 1988 and holds State forests formerly owned by the Minister for Energy. Its main purpose is to manage these forests as a semi-State commercial enterprise. Coillte is subject to ministerial direction on policy relating to forestry development and related activities, and on provision and maintenance of services and facilities and use of land for specified purposes.

13 The ESB was set up by the 1927 Act to generate and supply electricity. Until recently it was the monopoly generator and supplier of electricity in the State. It built and controlled the national grid and the distribution system. The ESB continues to operate generating plants which supply the national grid. The ESB, through Electric Ireland, is also a supplier of electricity to final customers. The national grid is controlled by an independent semi-State company. The grid is connected to electricity transmission systems in Europe. Suppliers of electricity to final customers are allowed to use the ESB distribution network.

14 The regulator grants authorisations and licences to construct generating stations; generate electricity and supply electricity to final customers. The 1999 Act removed the ESB monopoly and includes provisions which promote competition and development of electricity generation using sources of renewable energy. Development of generating facilities using renewable energy is promoted by a price support for electricity from such sources. Some 350 authorisations have been issued to construct generating stations and 380 entities have been licenced to generate electricity for supply to the national grid. This electricity is sold into a market of suppliers who sell to final customers. Holders of authorisations and licences are given access to valuable State-controlled infrastructure.

15 Right to Know CLG (Right to Know) seeks to make information available in the public interest. The European Union and the State are parties to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 1998 (the Aarhus Convention). The Directive gives effect to this Convention.

16 In May 2017 Right to Know asked RP for data relating to wind turbine noise which supported information provided in the application for planning permission for the wind farm. This request was refused on the ground that RP is not a “public authority”. The refusal was appealed to the Commissioner.

17 The Commissioner considered whether RP is a “ public authority” within Article 2(2)(b) or Article 2(2)(c) of the Directive. He concluded that RP is not a “ public authority” within either of these provisions.

18 Under article 12 of the Regulations the Commissioner carries out an investigation in relation to any matter which is referred to him and he can call for material which may be relevant to his decision. A problem may arise on appeal to the High Court on a point of law if some error is identified which can only be corrected following consideration of further material. The parties are agreed that the Commissioner had sufficient material before him to make a determination on all points.

19 My jurisdiction on appeal is limited. I can review whether legal conclusions are supported by material available to the Commissioner and whether those legal conclusions are correct. I can also review whether the Commissioner has failed to consider materials which he ought to have considered. I do not have any power on appeal on a point of law to decide disputed factual matters and I have no investigatory role.

20 If the Commissioner has come to an incorrect legal conclusion on the material before him...